Legislature(1997 - 1998)
04/14/1998 05:10 PM House RES
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
CSSB 262(FIN) - MANAGEMENT OF HUNTING CO-CHAIRMAN OGAN announced the next order of business was CSSB 262(FIN), "An Act relating to regulation of hunting and trapping, to the definition of 'sustained yield,' and to controlled use areas." CO-CHAIRMAN OGAN called on Mel Krogseng, staff to Senator Robin Taylor, sponsor of the bill. Number 618 MEL KROGSENG, Legislative Administrative Assistant to Senator Robin Taylor, Alaska State Legislature, read the following sponsor statement: "Senate Bill 262 restricts the department from curtailing traditional access for hunting and trapping unless the specific means of access is causing biological harm to a game population in the area where the restriction is to apply; and, the recovery of the wildlife population requires the access restriction. "Alaska license holders are outraged by the department's adoption of a preservationist philosophy which opposes consumptive uses by restricting access. At the fall 1995 Board of Game meeting, the Department of Fish and Game urged the Board of Game to close some 236 square miles to Alaska's hunters. The department's own biologists testified that there was no biological problem, no justification, nor actual conflict among user groups in the area. The department's director admitted that the only issue was one based solely on a mis-perception resulting from purposeful misinformation and disinformation promulgated by animal rights extremists. "The Board of Game is now politically compromised. It has developed a pattern of establishing 'controlled use areas' which deny user group access without any biological justification. Currently, there are 26 'controlled use areas' in the state and these will effectively be grandfathered under this legislation. To get politics out of future wildlife management decisions, the legislature must require that all wildlife regulations be necessary and biologically justified." MS. KROGSENG stated the bill would also define the term "sustained yield." Number 641 CO-CHAIRMAN OGAN asked Ms. Krogseng, for clarification, whether there was a mis-justification for the department or board's action. MS. KROGSENG replied the issue she referred to was about an area near the McNeil River State Sanctuary. There was a recommendation from the department to the board to restrict access for hunting because of protests by outside animal rights activists. Number 654 REPRESENTATIVE JOULE asked Ms. Krogseng whether the current controlled use areas would be grandfathered in. MS. KROGSENG replied, "Correct." The last section of the bill says the Board of Game "may" continue any of the current controlled use areas that they consider necessary. REPRESENTATIVE JOULE asked Ms. Krogseng whether the grandfather provision would extend past the review stage. MS. KROGSENG replied the intent of the section is for the board to look at the existing controlled use areas and maintain those that need to be maintained without any justification. Future controlled use areas, however, must be biologically necessary. REPRESENTATIVE JOULE asked Ms. Krogseng, for clarification, whether the establishment of a controlled use area would be based on a biological decision. The Noatak controlled use area was not necessarily based on biology, but the interference of hunter activity. When the western arctic caribou herd migrates south planes buzz around them and drive them away from the hunting areas. He wondered whether the bill would prohibit the board from deciding on a controlled use area based on that. MS. KROGSENG replied the original bill eliminated all controlled use areas, but it was changed based on talking with people. The board has used these areas as a methods and means to curtail harvest. She reiterated the current controlled use areas will remain in place as long as the board feels they need to be there. The bill is written that way because some areas were established on a temporary basis. REPRESENTATIVE JOULE stated the Noatak controlled use area was established because of the interference.... TAPE 98-46, SIDE B Number 000 REPRESENTATIVE JOULE continued. He wondered whether the board would be curtailed from putting in a controlled use area because of hunting interference. MS. KROGSENG replied that would be correct in the future. Number 009 CO-CHAIRMAN OGAN referred to page 3, line 4 and wondered whether it should read "of access" rather than "to access." The bill talks about "means of access" on page 3, line 6. MS. KROGSENG replied she doesn't know for certain. The structure of the subsection would change, if the term "to" is changed to "of." Number 049 REPRESENTATIVE GREEN stated in one case it means a method "to" do something, while in the other case it means a method "of" doing something. It is drafted correctly. Number 059 CO-CHAIRMAN OGAN called for a brief at ease. CO-CHAIRMAN OGAN called the meeting back to order. Number 063 CO-CHAIRMAN OGAN stated he has hunted by horse a number of times in controlled use areas. The bill says the board or department may not restrict the use of a method or means to "access, take, or transport game for the purpose of preferring or affecting the quality of the outdoor experience of a person or group." It also says the board may establish a controlled use area only if necessary to achieve biological management goals. He wondered whether an area getting a lot of pressure could be created because it is affecting the game populations, not because of the quality of a hunt. MS. KROGSENG replied, "Correct." Trophy animals would be a biological process. In addition, there are some 50 million acres of non-motorized land in the state, and Senator Taylor feels that is enough to allow for a quality hunt. The department or board should not be restricting areas unless it is biologically necessary. There are lots of folks who find it difficult to cart a moose on their back, for example. Number 141 REPRESENTATIVE JOULE stated closing seasons to grow horns for a trophy is not a biological reason, but an economical reason. Number 159 CO-CHAIRMAN OGAN asked Ms. Krogseng what "method or means to access, take, or transport game" means. MS. KROGSENG replied it is aimed at preventing a closure based on hiking or photography, for example. CO-CHAIRMAN OGAN stated "method or means to access, take, or transport game" means guns and bows and arrows. He wondered whether the department or board could not restrict the use based on a type of method to take game. MS. KROGSENG replied that is what the bill says. She doesn't think that is the intent, however. Number 218 REPRESENTATIVE GREEN stated the subsection says that the department cannot restrict access, taking of game, or transporting it out for the purpose of preferring or affecting the quality of the outdoor experience. In other words, accessing, taking, or transporting game cannot be inferior to photography, for example. Number 228 CO-CHAIRMAN OGAN stated he has always understood method and means of taking fish and game as the different forms of weaponry used. Number 233 REPRESENTATIVE BARNES agreed with Representative Green's interpretation. REPRESENTATIVE GREEN stated he understands what Co-Chairman Ogan is saying, but that is not the meaning in the bill. It means the process is not going to be inferior to a camera buff or sightseers, for example. MS. KROGSENG stated that is the intent. Number 256 CO-CHAIRMAN HUDSON stated subsection (3) on page 2 refers to the sustained yield principle, and Section 2 states that the board or department may restrict a traditional means of access if it finds in writing that the means of access has resulted in significant biological harm. In other words, the harm has already been done. Number 291 MS. KROGSENG agreed it is after the fact. Number 297 REPRESENTATIVE NICHOLIA stated she would like to hear from the department. She has the same concern. CO-CHAIRMAN OGAN called on Ken Taylor from the Department of Fish and Game. Number 302 KEN TAYLOR, Deputy Director, Division of Wildlife Conservation, Department of Fish and Game, stated the bill goes far beyond the intent conveyed in the sponsor statement. Section 1 would remove the board's responsibility to allocate resources by restricting its authority to adopt regulations only when necessary for the biological management of game. Among regulations that are not necessary for the biological management of game are bag limits, methods and means, accommodations for disabled persons, subsistence preferences, emergency openings to allow additional harvests, prohibiting live capture of animals, regulations made for public safety reasons, sale of game, and etc. He doesn't believe that is the intent of the sponsor, however. CO-CHAIRMAN OGAN stated in the Mat-Su Valley there is a restriction on the type of firearm used within areas near homes. He asked Mr. Taylor whether those types of concerns would be addressed under this bill. MR. TAYLOR replied, if this bill passes, those types of concerns and a number of other restrictions would not be able to be addressed. He cited the use of machine guns, helicopters for access, and shooting from a moving vehicle as examples. These restrictions are not based on biology, but necessitated by society. There are regulations that govern hunting behavior to maintain public acceptance of hunting, not to maintain the animal populations. They are to ensure the equitable use of the common resources, improve the quality of the hunt, prevent waste and misuse of game, and ensure the general safety and welfare of Alaskans. MR. TAYLOR further stated Section 2 of the bill would prevent the board from closing any area to a particular means of access after significant biological harm has occurred when recovery is unlikely without a restriction. There are a number of things that have to occur before the department could respond to do something. This is not consistent with the department's concept of sustained yield management. Sustained yield is the attempt to prevent significant harm from occurring by anticipating population declines and acting to stop them. The principle of sustained yield has guided wildlife management through the twentieth century. Therefore, it is highly inadvisable to attempt to define it at this stage. The definition of "sustained yield" in Section 3 would mandate a drastic and often impossible revision to the current management practices for several game species in the state. There is also concern about the meaning of "high level of human harvest" within the definition of sustained yield. Management for many species would require harvest of both sexes, an unpopular concept among many Alaskans for Dall sheep and moose. It would be inconsistent with the Ladue River controlled use area and around Tok that were not established for biological necessities. In addition, there are portions of the bill that conflict with several statutes. He cited the subsistence and antler-less moose provisions as examples. With all due respect to the sponsor, there is nothing that the department can find that's good for wildlife or its uses in the bill. The department strongly recommends not to move the bill from the committee. Number 398 REPRESENTATIVE BARNES stated there aren't that many changes in the bill, except for a few words. She asked Mr. Taylor how he can say that there isn't anything good about the bill. Number 406 MR. TAYLOR replied the bill puts the caveat of having to meet the criteria of biological necessity for the management of game on all of the existing laws. Many controlled use areas were not set for biological purposes. Many were set for regulating hunting behavior and ethical standards of society, for example. Number 416 REPRESENTATIVE BARNES asked Mr. Taylor where the department and board derive their powers to manage fish and game. MR. TAYLOR replied all of the powers of the department and board are provided for in Title 16. REPRESENTATIVE BARNES asked Mr. Taylor who passed the laws. MR. TAYLOR replied the legislature. REPRESENTATIVE BARNES asked Mr. Taylor when a law is passed does the department and board generally live up to its spirit and intent. MR. TAYLOR replied, "Yes." The department and board both work hard to live up to the spirit of a law. REPRESENTATIVE BARNES asked Mr. Taylor whether the department and board adopt regulations based on the clear face of the law. She said, "You have no power that is derived other than from the legislature. The only power you have is that power which we delegate. Then you sit there and tell me, sir, how you can in good conscience at anytime--first of all say a bill like this is not good and secondly when there's a law clear on its face--absolutely clear on its face--then how can you fail to live up to that law." MR. TAYLOR stated every time that the legislature has passed a law effecting fish and game matters the board and department have worked to implement it. If this bill was implemented into statute, the department would have to go through all of its game regulations to make certain that they are consistent with the intent and statement of the law. The way Section 1 is structured, many of the regulations would not pass the consistency review of being biologically necessary. REPRESENTATIVE BARNES asked Mr. Taylor why a bill like this is necessary. Is it because in game management unit 13 the department was in the process of adopting regulations that would have prohibited motorized vehicles in an area where the law quite specifically allows them? she asked. MR. TAYLOR replied no regulation proposals regarding Unit 13 came from the department. The department has maintained a consistent position on the use of Unit 13 and across the state. Unit 13 has been a high use area for outdoor recreation vehicles (ORV). The department can't simply address ORV use in hunting regulations in an area used for berry picking and mining, for example. A simplistic approach is to say that the ORV problem is caused by hunters. Therefore, the department recommended to the board that the issue be deferred until it could talk to the landowners, the BLM, and the Native corporations and put together a working group to address the issue further. REPRESENTATIVE BARNES stated there is a law on the book that clearly exempts the department from sticking its nose into Unit 13 as it relates to off-road vehicles. MR. TAYLOR stated there was an area that was established by the legislature for ORV use in a portion of Unit 13. He is not sure if it includes all of Unit 13, however. REPRESENTATIVE BARNES stated for the record that this is just one example where the department and board do not follow the clear face of the law. Number 512 WAYNE REGELIN, Director, Division of Wildlife Conservation, Department of Fish and Game, stated the department is well aware of the ORV regulations in Unit 13. The department had no intention of ever passing a regulation that would circumvent the law. In fact, in order to meet game objectives in Unit 13, ORV access is needed. The department was willing to work with those involved because of requests from the public in regards to snowmobiles in the winter. It had nothing to do with hunting. The department was willing to work on the issue and come back to the legislature if the law needed to be changed. There weren't any proposals, except by the public, or intent by the board or department to pass regulations. Number 527 CO-CHAIRMAN OGAN asked Mr. Regelin why the Board of Game noticed and solicited comments on restricting access in Unit 13 if the department had nothing to do with it. MR. REGELIN replied the department urged the board not to do that. The board felt that it wouldn't get any response from the public unless it was a regulatory meeting versus an informational meeting. The board gave the perception that it was going to pass something, but realized that it had opened up a can of worms that it shouldn't have. Number 538 REPRESENTATIVE BARNES stated all the board and department had to do was look at the law, and the law says it's a motorized vehicle area. It is due to the fact that the department promulgates regulations that it gets a bill like this. Number 547 REPRESENTATIVE JOULE asked whether there would be a fiscal impact for biological management. Number 555 MR. REGELIN replied, according to the Department of Law, it would have a major fiscal impact. There would have to be a special board meeting in order to go through any regulation that is not biologically necessary. It would also have an economical impact on people coming to Alaska to hunt. Number 575 REPRESENTATIVE JOULE asked whether the current controlled use areas would be grandfathered. The bill seems to be pulling at both ends. Number 589 MR. TAYLOR replied Section 5 grandfathers the existing controlled use areas. He would leave it to the Department of Law to determine whether the biological necessity mandated in Section 1 would apply to those grandfathered or not. Obviously, those established after the effective date of the Act would have to meet the biological management goals. Number 596 REPRESENTATIVE NICHOLIA asked what impact would this bill have on Article VIII of the state constitution in recognizing preference among beneficial uses, and in allocating the role of the Board of Game to decide when and where the preferences are applied. Number 602 MR. REGELIN replied he would defer to the Department of Law to answer the question. As Representative Barnes reminds the department often, the legislature provides the authority to do things, and the board and the department don't have a conflict with that. The legislature has delegated to the board and given it tools to make allocation decisions, such as controlled use areas. The board doesn't make biological decisions. The department presents biological information to the board based on surveys, scientific data, growth rates of herds, and goals. The current controlled use areas were either supported or recommended by advisory committees for a variety of reasons. The board has to make very tough decisions without a lot of tools, and one of the most effective tools right now is controlled use areas. Number 639 REPRESENTATIVE NICHOLIA asked Mr. Regelin to expand on the earlier discussion of the bill giving a mixed message in regards to the sustained yield. Number 645 MR. REGELIN replied at the present time in fish and game biology the term "sustained yield" is not defined. It is a concept or principle and it doesn't lend itself easily to a specific definition. Therefore, the Department of Law is concerned about any definition of the term "sustained yield" in fish and game statutes. Where it is defined in forestry related issues it creates problems for lawsuits. This bill defines sustained yield as a high level of human harvest. There is another bill that defines it as a percentage of the annual catch. The two definitions would define sustained yield as a fixed rate when every herd and population is different. For that reason, the department has always urged the legislature not to define the term "sustained yield." CO-CHAIRMAN OGAN stated he does not anticipate moving the bill out of the committee today. CO-CHAIRMAN OGAN referred to page 3, line 3 - "(b) The Board of Game or the department may not restrict the use of a method or means to access, take, or transport game for the purpose of preferring or affecting the quality of the outdoor experience of a person or group." He is concerned about the term "take" and its broad interpretation. MR. REGELIN stated, according to the Department of Law, it would affect all methods and means that are in effect due to safety, fair chase standards, access, and etc. CO-CHAIRMAN OGAN asked Mr. Regelin whether the term "methods and means" would refer to primitive weaponry, such as bows and arrows and caliber of rifles. He asked whether that is how it is defined in the regulations. MR. REGELIN replied there are four or five different sections of the regulations that define the term "methods and means" - taking game, taking big game, unlawful methods of taking game, the use of machine guns. TAPE 98-47, SIDE A Number 000 CO-CHAIRMAN HUDSON stated clearly there are some concerns predicated by the bill. He asked the department representatives to help with some solutions by indicating how the author's intent can be satisfied without curtailing the use of a handicapped person, for example. Number 043 GABE SAM, Director of Wildlife and Parks, Tanana Chiefs Conference, Incorporated (TCC), testified via teleconference in Fairbanks. The bill would greatly affect the hunter pressure in controlled use areas. There are illegal aircrafts entering the Koyukuk controlled use area resulting in a proposal to extend it to the Kanuti controlled use area. It was shot down because the board said there wasn't enough information. He doesn't see how the bill will do any good for controlled use areas. In 1996, there were 800 hunters going into the Koyukuk controlled use area. The number was limited in order to slow down the taking of the breeder stock. It is starting to work, but if the controlled use area is taken away, the results will be for nothing. The TCC is opposed to the bill. Number 109 REPRESENTATIVE JOULE asked Mr. Sam when the Koyukuk controlled use area was implemented. He also asked whether the local advisory committee had any input into the implementation. Number 118 MR. SAM replied yes the Koyukuk River Advisory Committee brought the issue to the board. It was like a regular highway on the Koyukuk River competing with the local hunters. It was hard to compete with the boats and the mini-camps set up along the river. It was also affecting the environment. The controlled use area has done a lot. It controls the amount of hunters on the river at any given time, and allows for a local hunting priority. If the controlled use area is taken away, there will be chaos with law enforcement. Number 162 REPRESENTATIVE NICHOLIA stated in some controlled use areas hunters are not limited, but the access is limited. She wanted to make sure that was clear for the committee members. CO-CHAIRMAN OGAN stated he hunts with horses in controlled use areas for a quality hunt. In regards to controlling the breeder stock, the bill does not prevent the board from implementing a controlled use area for biological reasons. Number 190 TIMOTHY C. ANDREW, Director of Natural Resources, Association of Village Council Presidents (AVCP), testified via teleconference in Bethel. There is no denying that the state is undergoing extremely trying times for fish and game management. Increased pressure and conflicts among user groups both inside and outside Alaska is rampant. Air transporters are saturating areas with mass-marketing with little or no concern for resource depletion. They simply move on or accept that the abundance is over. Increased amounts of rotting meat are observed at village airports when no one is being held responsible. Legislation such as this only furthers the shambles and divisiveness being romped through the lack of an appropriate response. Senate Bill 262 raises substantial questions and serious concerns by preventing the Board of Game from carrying out one of its basic responsibilities and primary reason for being created. The results begs the question of whether the sponsor and supporters of the bill are silent partners of the animal rights fanatics. The measures to address predator control problems would be even further restricted since they are seldom "biologically necessary." The existing intensive management law would be directly contradicted since it is not "biologically necessary." Section 2 flies directly in the face of the sustained yield principle embodied in the state constitution. The reference to the word "balloon" in Section 2 indicates somebody believes balloons are used as a traditional means of access to go hunting when it is difficult and practically unimaginable. But, it would be a statutory directive. The AVCP strongly encourages the committee members to reject the bill or at a minimum hold it until it has been amended to reflect what any reasonable person would presume to be its true purpose. Number 271 HERMAN MORGAN, Chairman, Central Kuskokwim Fish and Game Advisory Committee, testified via teleconference in Aniak. The central Kuskokwim would be adversely affected by the bill. There is a huge increase of resident and nonresident sport hunters accessing the area by plane increasing the potential for competition and conflicts between resident and nonresident hunters. A lot of the resident hunters use moose to feed their families. Because there isn't an aircraft restriction in the central Kuskokwin area, moose hunting will be concentrated in non-controlled use areas leading to biological emergencies. More pallets of rotting meat will be seen and no one will be held responsible. How can there be a quality outdoor experience if there aren't any moose? he asked. Controlled use areas are established for a reason and the bill would take away an important tool for the board. Number 305 REPRESENTATIVE NICHOLIA asked Mr. Morgan whether there is a moose shortage in his area, and whether he is working with the Department of Fish and Game on that issue. MR. MORGAN replied there aren't a lot of moose around the McGrath area, but there are a lot of wolves. The predators are really increasing and once the moose reach below a certain point it's hard to bring them back up. We tried to initiate a controlled use area around Sleetmute on the Holitna River because that's where a lot of local hunters hunt moose by boat and it's not right to compete with other hunters, especially when a lot of the meat would go to waste. CO-CHAIRMAN OGAN announced the bill will be held over.
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